The Second Department Rules on Child Support Parental Income Cap, Transfer of the Marital Residence, and Judgment Formalities

In a May 8, 2013 decision in Mejia v. Mejia, the Appellate Division, Second Department, modified a divorce judgment’s provisions concerning the cap on combined parental income, the disposition of the marital residence, college expenses for three children ages 14, 10 and 6, and judgment inconsistencies with the underlying decision and judgment formalities.

After the parties separated, they each petitioned the Family Court for custody of the children. The parties consented that they share joint legal custody, and that the father have primary physical custody.

After a non-jury trial on certain financial issues, the Family Court considered the first $200,000 of combined parental income in determining child support, based upon, among other things, “the economic reality of life in Rockland County,” and a determination that the gross income of the mother was substantially less than that of the father. The mother’s pro rata share of the basic child support obligation was 37% of 29% of the first $200,00 of combined parent income was fixed at $1,789 per month in the 2011 Family Court order.

The marital residence, titled in the parties’ joint names, was awarded to the father and the children, based upon the father’s claim that there was no equity in the house. The court further concluded in its decision that the father should maintain health insurance for the children, and that the mother should pay 37% of the college expenses of the children.

The Second Department lowered to $150,000 the applied cap on combined parental income, “considering the substantial difference between the parties’ income, the fact that the [mother] has less income than the [father], and the amount of parenting time awarded to the [mother].” Calculated on that basis, the mother’s pro rata share of the child support obligation was $1,341 per month.

Apparently, based upon the father’s claim that there was no equity in the house, the Family Court had directed that the mother’s interest in the jointly-owned marital residence be conveyed to the children, a result the parties acknowledged on appeal was without authority.

Moreover, because he was seeking a transfer of the mother’s interest, the father had the burden of establishing its value. This, the appellate court noted, he failed to do. As a result, the father was not entitled to receive the mother’s interest in the marital residence. Instead, as the father had physical custody of the children, the father was awarded on appeal exclusive possession of the marital residence until the youngest child reaches the age of 18 or graduates from high school, whichever occurs first. At that time, the marital residence will be sold and any proceeds, after application of any appropriate credits, divided equally between the parties.

Considering the ages of the children (14, 10 and 6), it was premature for the Supreme Court to direct the mother to contribute toward the college expenses of the children. That provision of the judgment was stricken.

In his decision on the divorce, Rockland County Surrogate (and Acting Supreme Court Justice) Thomas E. Walsh II had ruled that the father maintain medical, dental, prescription, and optical insurance for the benefit of the parties’ unemancipated children. However, the judgment failed to include such a provision. The appellate court noted that when there is an inconsistency between a judgment and the decision or order upon which it is based, the decision or order controls. Accordingly, the judgment was modified to include such a provision.

Similarly, the divorce judgment was deficient in its failure to include the notice required by Domestic Relations Law §236(B)(7)(d). That notice informs the parties of their right to seek a modification of the child support order upon a showing of “(i) a substantial change in circumstances; or (ii) that three years have passed since the order was entered, last modified or adjusted; or (iii) there has been a change in either party’s gross income by fifteen percent or more since the order was entered, last modified, or adjusted.” The judgment was modified to include that notice.

Joel B. Mayer, of Manhattan, represented the mother. Cassandra Bilotta of Bilotta and Metz, P.C., of New City, represented the father.